立法會 Legislative Council

(issued by email only)

LC Paper No. CB(3) 496/19-20 Ref. : CB(3)/A/42 Tel : 3919 3300 Date : 2 June 2020 From : Clerk to the Legislative Council To : All Members of the Legislative Council

The Court of Appeal’s judgment related to the proceedings initiated by the Secretary for Justice against LEUNG Kwok-hung

(on appeal from ESS 16969/2017) With the President’s consent, I attach for Members’ information the captioned judgment (HCMA 520/2018) (English version only). The summary of the captioned judgment prepared by the Legal Service Division of the Legislative Council Secretariat will follow. 2. In gist, the Court of Appeal held that the offence of contempt under section 17(c) of the Legislative Council (Powers and Privileges) Ordinance (Cap. 382), i.e. creating or joining in any disturbance which interrupts or is likely to interrupt the proceedings of the Council or a committee, applies to a Legislative Council Member. (Dora WAI)

for Clerk to the Legislative Council Encl.

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HCMA 520/2018

[2020] HKCA 424

IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL

MAGISTRACY APPEAL NO 520 OF 2018 (ON APPEAL FROM ESS NO 16969 OF 2017)

________________________

BETWEEN

SECRETARY FOR JUSTICE Appellant and

LEUNG KWOK HUNG Respondent

________________________

Before: Hon Poon CJHC, Lam VP and Pang JA in Court

Dates of Hearing: 1 August 2019 and 12 May 2020

Date of Judgment: 2 June 2020

_________________

J U D G M E N T _________________

Hon Poon CJHC:

A. Introduction

1. In Hong Kong, a member of the Legislative Council

(“LegCo”) enjoys various privileges and immunities both at the

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constitutional and statutory level. One such privilege and immunity is

the freedom of speech and debate in LegCo or proceedings before a

committee.

2. At the constitutional level, article 77 of the Basic Law

provides:

“Members of the Legislative Council of the Hong Kong Special Administrative Region shall be immune from legal action in respect of their statements at meetings of the Council.”

The Basic Law being a constitutional document, the wording used in

article 77 is necessarily broad and general. More details of the privilege

and immunity are to be found at the statutory level in the Legislative

Council (Powers and Privileges) Ordinance, Cap 382 (“LC(PP)O”).

3. Sections 3 and 4 of the LC(PP)O respectively provides:

“3. Freedom of speech and debate There shall be freedom of speech and debate in the Council or proceedings before a committee, and such freedom of speech and debate shall not be liable to be questioned in any court or place outside the Council.

4. Immunity from legal proceedings

No civil or criminal proceedings shall be instituted against any member for words spoken before, or written in a report to, the Council or a committee, or by reason of any matter brought by him therein by petition, Bill, resolution, motion or otherwise.”

Although couched in greater details, the intention of the two sections is to

confer the same privilege and immunity on LegCo members contained in

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article 77 of the Basic Law: Cheng Kar Shun v Li Fung Ying [2011] 2

HKLRD 555, per A Cheung J (as he then was) at [160].

4. At the same time, the LC(PP)O provides for a range of

criminal offences in Part IV. Featuring in this appeal is section 17(c) for

contempt:

“Any person who – …

(c) creates or joins in any disturbance which interrupts or is likely to interrupt the proceedings of the Council or a committee while the Council or such committee is sitting,

commits an offence and is liable to a fine of $10,000 and to imprisonment for 12 months, and in the case of a continuing offence to a further fine of $2,000 for each day on which the offence continues.”

5. This appeal concerns the scope of the privilege and

immunity of sections 3 and 4, their interface with section 17(c) and the

constitutionality of section 17(c) if they apply to a LegCo member.

There are two core issues raised:

(1) If the conduct of a LegCo member in purportedly exercising

his freedom of speech and debate in the Council or

proceedings in a committee falls within the description of

section 17(c), is he nevertheless protected by sections 3 and

4 so that he cannot be prosecuted for the offence of contempt?

Put in another way, is section 17(c) applicable to a LegCo

member so that when his conduct is caught by the provision

when he is purportedly exercising his freedom of speech and

debate in the Council or proceedings in a committee,

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sections 3 and 4 do not immunize him against a prosecution

for the offence of contempt?

(2) If a LegCo member is liable to be prosecuted under section

17(c), does the provision offend the doctrine of separation of

powers, thus rendering it unconstitutional?

B. The facts

6. On 15 November 2016, the Panel on Housing and the Panel

on Development of LegCo held a joint meeting. It was attended by,

among others, the respondent who was then a LegCo member and the

then Under Secretary for Development, Mr Ma Siu-cheung. Mr Ma had

a meeting folder containing some confidential documents, which was

placed on the bench in front of him. In the course of the meeting, the

respondent left his seat, approached Mr Ma, snatched away Mr Ma’s

folder, and then passed it to another LegCo member for him to read,

ignoring the repeated demands of the chairperson of the joint meeting to

go back to his seat and to return the folder to Mr Ma. In the end, the

chairperson pursuant to relevant Rule of the Rules of Procedure (“RoP”)

ordered the respondent to withdraw from the meeting.1 Mr Ma’s folder

was retrieved by the security guard and returned to him.

7. After the meeting, the then Chief Secretary for

Administration by a letter dated 15 November 2016, complained to the

President of LegCo about the respondent’s grossly disorderly conduct and

asked him to take any action as appropriate. In his reply letter dated 21 1 The Rule invoked by the chairperson is Rule 45(2), which empowers the chairman to order a member whose conduct is grossly disorderly to withdraw immediately from the meeting.

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November 2016, the President stated that unless the RoP were amended,

the chairperson of the meeting could take no further action in addition to

ordering the respondent to withdraw from the meeting. He also noted

that the issue of deterring members’ disorderly conduct had been

examined by the Committee on Rules of Procedure but no consensus was

reached. In view of the Chief Secretary’s concern, he would ask the

chairman of that Committee to consider if the issue ought to be re-visited

in the Sixth LegCo.2

C. Proceedings below

8. On 12 May 2017, the respondent was prosecuted for the

offence of contempt, contrary to section 17(c) of the LC(PP)O.

9. After a preliminary hearing, which lasted for 4 days between

15 and 18 January 2018, Acting Principal Magistrate Ms Ada Yim (“the

Magistrate”) on 5 March 2018 ruled that what is said and done by a

LegCo member during proceedings is within the sphere of the privilege

under section 3 of the LC(PP)O provided that it does not amount to an

ordinary criminal offence; and that although section 17(c) of the

LC(PP)O was applicable to the proceedings of LegCo or a committee in

general, it was not applicable to LegCo members. That being her

rulings, the Magistrate did not find it necessary to decide whether section

17(c), if found to be applicable to a LegCo member, was unconstitutional.

The hearing before the Magistrate has since been adjourned sine die.

2 We were told at the hearing on 12 May 2020 that nothing further had been done by the Sixth LegCo in this regard.

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D. Questions of law

10. Pursuant to section 105 of the Magistrates

Ordinance, Cap 227, the Secretary for Justice appealed against the

Magistrate’s rulings by way of case stated. At the Direction Hearing

on 29 November 2018, Anthea Pang J ordered that the appeal be reserved

for the consideration of the Court of Appeal under section 118(1)(d) of

the Magistrates Ordinance.

11. Four questions of law based on the Magistrate’s rulings are

raised in the Amended Case Stated dated 9 August 2019:3

(1) Was the Magistrate correct in finding that what is said and

done by a member of LegCo during the proceedings is

within the sphere of the privilege provided that it does not

amount to an ordinary criminal offence? (Question 1)

(2)(a) Was the Magistrate correct in ruling that, upon true

interpretation, section 17(c) of the LC(PP)O is not applicable

to the members of LegCo? (Question 2(a))

(2)(b) Was the Magistrate correct in ruling that, upon true

interpretation, section 17(c) of the LC(PP)O is applicable to

the proceedings of LegCo or a committee in general (i.e. not

limited to proceedings related to evidence taking under

oath)? (Question 2(b))

3 The original Case Stated dated 23 October 2018 only contained 2 questions of law. Pursuant to this Court’s direction at the hearing on 1 August 2019, the Case Stated was amended to include a further question, which became Question 1.

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(3) Should the Magistrate’s ruling that section 17(c) is

inapplicable to the respondent be upheld on the further

alternative basis that section 17(c) is unconstitutional if

interpreted to apply to a member of LegCo? (Question 3)

12. These Questions require a vigorous examination and

application of the relevant principles on the concept and scope of

privilege and immunities that the law confers on LegCo members qua

members of the legislature of the Hong Kong Special Administrative

Region.

E. Scope of sections 3 and 4 and their interface with section 17(c)

13. Although Ms Margaret Ng, appearing for the respondent,4

relied on section 4, on the facts of this appeal, it does not add anything to

the analysis at hand. For it is the respondent’s primary case that the

privilege of section 3 covers not only what he said but also his conduct in

exercising the freedom of speech and debate, even if it falls within the

description of section 17(c). In other words, section 17(c) simply does

not apply to him. Ms Ng has not advanced any argument that section 4

will separately and independently immunize him against a prosecution

under section 17(c). It is therefore not necessary to embark on a

separate analysis of section 4. For present purposes, the scope of section

3 will also determine that of section 4.

4 Together with Mr Carter Chim and Mr Jason Lee.

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E1. A matter of statutory interpretation by the court

14. Since both sections 3 and 17(c) are statutory provisions, their

scope and interface must be determined by the courts as a matter of

statutory interpretation. Indeed, in Leung Kwok Hung v President of the

Legislative Council (No 1) (2014) 17 HKCFAR 689, the Court of Final

Appeal at [39]-[43] held that under the constitutional framework of the

Basic Law, the courts will determine whether LegCo has a particular

power, privilege or immunity.

15. This accords with the English approach.

16. In England, article 9 of the Bill of Rights (1689) provides for

the privilege of speech and debate thus: “That the Freedome of Speech

and Debates or Proceedings in Parlyament ought not to be impeached or

questioned in any Court or Place out of Parlyament.” There is another

form of privilege that has its origin before 1689 and which is wider than,

and embraces, article 9. This has been customarily described as the

“exclusive cognisance of Parliament”: R v Chaytor [2011] 1 AC 684, per

Lord Phillips at [13]. It refers to the exclusive right of the Parliament to

regulate its own affairs without interference from the other or from

outside Parliament: Chaytor, supra, per Lord Phillips at [63]. Including

in its exclusive cognisance is Parliament’s power to discipline its own

members for misconduct and, further, power to punish anyone, whether

or not a member, for behavior which interfere substantially with the

proper conduct of parliamentary business. Such interference is known

as contempt of Parliament. This falls within the penal jurisdiction

exercised by each House to ensure that it can carry out its constitutional

functions properly and that its members are not obstructed or impeded.

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See Report on Parliamentary Privilege published on 9 April 1999 by the

Joint Committee on Parliamentary Privilege, Chapter 1, at [14].5

17. It is well-settled that it is for the courts to determine the

scope of parliamentary privilege whether it is under article 9 or matters

within the exclusive cognisance of Parliament: R (Miller) v Prime

Minister [2019] 3 WLR 589, per Baroness Hale and Lord Reed at [66].

E2. A purposive and contextual approach

18. It is trite that the courts adopt a purposive and contextual

approach to statutory interpretation. The context of a statutory provision

is taken in its widest sense and includes other provisions of the statute

and the existing state of the law: T v Commissioner of Police (2014) 17

HKCFAR 593, per Ribeiro PJ at [48]. It also includes its legislative

history and purpose: Secretary for Justice v Cheng Ka Yee (2019) 22

HKCFAR 97, per French NPJ at [34].

19. Ms Ng submitted that the LC(PP)O is a codifying and

consolidation statute. In view of her submission, it is convenient to

briefly examine the relevant state of law which pre-existed its enactment

in 1985.6

5 In England, the Parliament still retains the penal power. See [66]-[70] below.

6 The legislative process took place in May and June 1985. It came into force on 26 July of the same year.

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E3. The relevant law

20. It is well established that like other colonial legislatures, the

privileges and immunities attached to the pre-1997 LegCo were derived

from the common law doctrine of inherent necessity: Rediffusion (Hong

Kong) Ltd v Attorney General of Hong Kong [1970] AC 1136, per Lord

Diplock at p.1157E. Under that doctrine, colonial legislatures are

deemed to possess such privileges and immunities that are necessarily

incidental to their capacity to function as legislative bodies: New

Brunswick Broadcasting Co v Nova Scotia (Speaker of the House of

Assembly) [1993] 1 SCR 319, McLachlin J (as she then was), at p.379e-g.

21. The first and foremost privilege that colonial legislatures

have arising from that doctrine is the freedom of speech and debate in the

legislature. In Chenard & Co v Arissol [1948] AC 127, Lord Reid at

pp.133-134 reiterated that by the doctrine of inherent necessity, to enable

a colonial legislature to properly exercise its functions, such a privilege

exists and is absolute. Quoting Martin CJ in Gipps v McElohne (1881) 2

NSW 18, at p.21, he said:

“There is no doubt in my mind of the existence of this privilege, and that it is absolute. It arises from inherent necessity. The necessity is just as great as in the Imperial Parliament.”

22. The privileges and immunities of a colonial legislature are,

however, not identical to the privileges and immunities that the English

Parliament has in every aspect: Rediffusion (Hong Kong) Ltd v Attorney

General of Hong Kong, supra, per Lord Diplock at pp.1154G-1155A. It

is because the parliamentary privilege of the English Parliament sprang

from its authority as a court, which is not applicable to colonial

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legislatures: New Brunswick Broadcasting Co v Nova Scotia (Speaker of

the House of Assembly), supra, per McLachlin J at pp.379i-380g.

23. One such aspect concerns the penal powers to punish those

who have committed contempts in the legislature. The English

Parliament has such penal powers, the origin of which is again probably

based on the medieval concept of the English Parliament as primarily a

court: see Erskine May’s Treatise on The Law, Privileges, Proceedings

and Usage of Parliament, (25th ed, 2019) at §11.23.7 A colonial

legislature, established by constitutional instruments such as Letters

Patent and Royal Instructions, does not have the same power peculiar and

inherent to the English Parliament to punish for contempt. Nor is such

power essential to its existence or proper discharge of its functions: Doyle

v Falconer (1886) LR 1 PC 328, at pp.339-341.

24. In Doyle v Falconer, supra, the Privy Council at p.340 drew

the important distinction between the disciplinary power of a colonial

legislature to deal with contempts and the courts’ judicial power to

impose criminal sanctions on such conduct:

“It is necessary to distinguish between a power to punish for a contempt, which is a judicial power, and a power to remove any obstruction offered to the deliberations or proper action of a Legislative body during its sitting, which last power is necessary for self-preservation. If a Member of a Colonial House of Assembly is guilty of disorderly conduct in the House whilst sitting, he may be removed, or excluded for a time, or even expelled; but there is a great difference between such powers and the judicial power of inflicting a penal sentence for the offence. The right to remove for self-security is one thing, the right to inflict punishment is another. … [Whenever] the violation of order amounts to a

7 See further [66]-[70] below.

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breach of the peace, or other legal offence, recourse may be had to the ordinary tribunals.”

25. In New Brunswick Broadcasting Co v Nova Scotia (Speaker

of the House of Assembly), ibid, McLachlin J referred to the same

distinction between disciplinary and penal power of a colonial legislature

based on the doctrine of necessity:8

“[These] legislatures would need to exercise certain very moderate privileges which were necessary for the maintenance of order and discipline during the performance of their duties. But these were to be protective and not punitive powers, for the latter were again considered to be characteristic of a court rather than of a legislative body.”

26. In 1985, LegCo exercised its inherent disciplinary power to

maintain order and discipline by Standing Orders.9 In Part H, the rules

of debate were set out, covering the time and manner of speaking

(Standing Order 27); occasions when a member may speak more than

once (Standing Order 28); interruption (Standing Order 29); contents of

speeches (Standing Order 31); behavior of members not speaking

(Standing Order 32). The rules clearly required LegCo members to

conduct the legislative and deliberative business in a dignified, orderly

and civilized manner, commensurate with the institutional and social

importance of LegCo and the dignity and solemnity of its proceedings.

To cater for instances of contempts, pursuant to Standing Order 34(2), the

President of LegCo or a chairman in committee shall order a member

whose conduct was grossly disorderly to withdraw immediately from the

8 Quoting Professor Dawson’s Government of Canada (5th ed. 1970), at pp.337-338.

9 As will be seen shortly, after 1997, LegCo exercises similar disciplinary powers under the relevant RoP.

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Council for the remainder of that sitting. As to a stranger, a member of

the public or the press, Standing Order 67 stipulated the steps to be taken

for the President or chairman to order him to withdraw from the Council.

Apparently, the ground for ordering withdrawal was not limited to gross

disorderly conduct. These Standing Orders collectively set a standard of

orderly behavior for both members and non-members, commensurate

with its institutional and social importance, so that LegCo can perform its

functions orderly and effectively without interference and disruptions.

These Standing Orders remained after the enactment of the LC(PP)O.

27. LegCo did not claim to have any penal jurisdiction over

disorderly conduct generally whether committed by anyone, members or

not. Nor was there any such criminal offence.

28. For proceedings of taking evidence, LegCo had penal

jurisdiction as provide for in section 4(1) of the Oath and Declarations

Ordinance, Cap 11 (“ODO”):10

“The Legislative Council and any committee thereof may administer an oath to a witness examined before the Council or committee, and for that purpose shall have the same powers, rights and privileges as are possessed or exercisable by the House of Commons of the United Kingdom or any committee for enforcing the attendance of witnesses and punishing persons guilty of contempt.”

No separate criminal offence was found in statute or at common law.

29. To sum up, the state of the relevant law existing at the time

of the enactment of the LC(PP)O is this. LegCo members had the 10 Repealed since the enactment of the LC(PP)O.

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absolute privilege of freedom of speech and debate in Council by virtue

of the doctrine of inherent necessity. LegCo also had inherent

disciplinary power to maintain its order and discipline to deal with

contempts including the power to order a member to withdraw on gross

disorderly conduct or a non-member to withdraw. But LegCo did not

have penal jurisdiction to impose criminal sanctions, such as fine or

imprisonment, against any person, whether he was a member or not, for

his disorderly conduct generally. There was no criminal offence for

such disorderly conduct either. LegCo had jurisdiction to punish

persons guilty of contempt in connection with proceedings for taking

evidence under section 4(1) of the ODO. However, there was no

criminal offence as such in the criminal statute or at common law.

E4. The legislative deliberations

30. The deliberations during the legislative process also shed

light on the purpose and context of the LC(PP)O.

31. The LC(PP)O was enacted with the resumption of

sovereignty of Hong Kong by the Government of the People’s Republic

of China in 1997 in view. In moving the second reading of the

Legislative Council (Powers and Privileges) Bill 1985 on 15 May 1985,

the Chief Secretary said:11

“The primary purpose of the Bill is to make provision for the powers and privileges of the Legislative Council, its members and officers. Whilst the Bill will have the effect of granting powers, privileges and immunities to individual members personally, its objective is to enable members to

11 Hansard, the Hong Kong Legislative Council on 15 May 1985, at pp.1111-1112.

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discharge their functions properly, without fear or favour, and to uphold the dignity of the legislature. … Although the legislature of a Crown colony does not, by its mere establishment, acquire all these powers, privileges and immunities [enjoyed by Members of Parliament in Westminster], the existing body of law in Hong Kong (principally U.K. case law which applies in Hong Kong under the common law system) the Jury Ordinance and other administrative practices in fact confer all these powers and privileges on Members of this Council. In the Government’s view, however, it is desirable to enact legislation generally to codify such powers and privileges. There are several considerations supporting this view.

first, after 1997, any inherent powers and privileges derived from the present status of the Legislative Council as a colonial legislature would cease to have effect in Hong Kong. For example, the powers and privileges derived from case law have never been brought out in any ruling in Hong Kong and, if they are to be retained, they must be the subject of legislation at some stage; second, to smooth the transition, the necessary legislation to codify these points should be completed earlier rather than later; third, as Hong Kong moves towards representative government, the present system of consensus politics may come under some pressure. It would therefore be desirable specifically to provide for the rights of Members and for the powers and privileges through which the Legislative Council manages its business to be clearly understood; fourth, if the Governor is to cease to be the President of the Legislative Council at some future date, it would be desirable for the new Presiding Officer, lacking the other proofs of authority which the Governor has, to have clear legal sanction to hand for the conduct of the Council’s business; and fifth, decisions recently taken to hold meetings of the Finance Committee and the Public Accounts Committee in public make it timely for the position as

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regards the calling of witnesses and the hearing of evidence to be codified. …”

32. On 12 June 1985, LegCo resumed debate on the second

reading of the Bill. The convener of the ad hoc group formed to

consider the Bill addressed the Council. She referred to the need to

enact an Ordinance for the subject matters, the aim of the Bill being to

codify the existing common law and Parliamentary practice which would

be extended or had already been extended to the Hong Kong legislature

under the doctrine of inherent necessity, the five considerations

previously mentioned by the Chief Secretary and then addressed various

criticisms levelled against the Bill, including that the Bill was not a mere

codification exercise but new offences had been created and new powers

bestowed upon the Legislative Council. She emphasized:12

“In fact in this Bill there has never been the intention or the wording to seek the power to prosecute or enforce its provisions by the Legislative Council. The real power rests in the hands of the Attorney General and the courts of law.”

33. In rounding up the debate, the Chief Secretary said:13

“…I think it is fair to point out that just as the provisions of the Bill are derived from the existing law, so the philosophy of the Bill reflects the philosophy of the law. And that law is parliamentary law. It is not the case that the Bill proposes to introduce parliamentary law in a situation where it is not already present. The essential point that must be emphasized is that parliamentary law is now being and has long been applied in Hong Kong in respect of this Council. I am advised and I accept that in the context of Hong Kong this Bill

12 Hansard, the Hong Kong Legislative Council on 12 June 1985 at pp.1220.

13 Hansard, supra, at pp.1232-1233.

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is a faithful reflection of that law and the existing situation: it does not introduce new law.”

The Chief Secretary then relevantly echoed the point made by the convener:

“The element of the Bill that is somewhat different from the classic traditions of parliamentary law is that instead of this Council claiming power to punish for breaches of privileges, that question is to be handed over to the courts. In other words the Bill makes the concession, and rightly so, that this Council should never act as judge in its own cause.”

34. The first point to note from the legislative deliberations is

that the privileges and immunities to be conferred on LegCo by

legislation are derived from those already in existence under the common

law doctrine of inherent necessity. The same doctrine of necessity

should inform an exercise to define the scope of the privileges as a matter

of statutory interpretation, as in the present.14

35. Both the Chief Secretary and the convener described the

legislative exercise as codification. Relying on their remarks, in

particular, that of the Chief Secretary that the Bill did not create new

law,15 Ms Ng submitted that the LC(PP)O was a codifying statute.

36. By definition, codifying legislation collates and restates all

the relevant statute and case law in a given area so as to become the

complete statement of the law, in the form of a statute, in the area. To a

limited extent, the LC(PP)O is a codification. As seen, the common law

doctrine of inherent necessity applied to the pre-1997 LegCo. Insofar as

14 See further [53] below.

15 Quoted at [33] above.

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the privileges and immunities were conferred by that doctrine, they are

codified in the corresponding provisions in Part II. They include the

absolute privilege of section 3, which is modelled on article 9 of the

English Bill of Rights 1689. Further, section 4 of the ODO was

replaced by the corresponding provisions in Part III.

37. However, the criminal offences in Part IV including those in

connection evidence, such as refusing to give evidence, giving false

evidence, interference or obstruction of witnesses, etc and disorderly

conduct are not codifying provisions as such. Those concern

proceedings of witnesses might have been derived from section 4 of the

ODO. Prior to the enactment, there were no such criminal offences,

whether in statute or at common law. Only LegCo had the jurisdiction

to punish persons guilty of such conduct. As will be seen below, it was

open to LegCo to relinquish the jurisdiction to the courts by enacting the

provisions.16 For other criminal offences, LegCo did not have the

necessary penal jurisdiction. The corresponding provisions including

section 17(c) vested the courts, and not LegCo, with the jurisdiction to

punish persons guilty of the same.

38. The Chief Secretary’s remark that the Bill did not introduce

new law must be understood in context. Properly understood, he was

making the point that the powers and privileges to be created by the

LC(PP)O were all derived from the existing law of parliamentary

privilege, alleviating the concern that new powers and privileges were

created especially for LegCo. And as seen above, Parliament’s power to

discipline its own members and further, power to punish anyone, whether 16 Appling the principles discussed at [66]-[70] below.

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a member or not, for behaviour interfering substantially with the proper

conduct of parliamentary business falls with its exclusive cognisance.17

Thus the criminal provisions in Part IV are all derived from the existing

law of parliamentary privilege with the necessary modification, if any, to

suit the local circumstances.

39. Finally, nothing in the legislative process suggests that

section 17(c) was intended to apply to proceedings of taking evidence or

to non-members only, as Ms Ng has contended.

E5. A statutory framework for a secure and dignified environment

40. Like any other legislature, LegCo can only properly

discharge its constitutional functions as legislature of Hong Kong, free

from outside interference, in an environment which is secure, dignified

and conducive to the orderly and effective conduct of its business without

disruption or disturbance while permitting members of the public to

observe its proceedings as an open process. The LC(PP)O clearly aims

at securing such a statutory framework for LegCo: see HKSAR v Fong

Kwok Shan Christine (2017) 20 HKCFAR 425, per Ribeiro PJ at [82].

41. Thus as the long title of the LC(PP)O states, it aims:18

“To declare and define certain powers, privileges and immunities of the Legislative Council and of the members and officers thereof and of the Chief Executive and public officers designated by him in relation to attendance at sittings of the Legislative Council and committees thereof; to secure freedom

17 At [16] above.

18 See also the review done by Ribeiro PJ did in Fong Kwok Shan Christine, supra, at [83]-[90].

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of speech in the Legislative Council; to make provision for regulating admittance to and conduct within the precincts of the Chamber of the Legislative Council; to provide for the giving of evidence in proceedings before the Legislative Council or committees thereof, and for offences in respect of such proceedings and related matters; and for purposes incidental to or connected therewith.”

42. Protection of the core legislative and deliberative business in

terms of free speech and debate in the Council and proceedings in a

committee is conferred by sections 3 and 4. Together with other

privileges and immunities, they aim at enabling LegCo to carry out its

functions independently and without outside interference. The

provisions regulating admittance, etc and for offences, including section

17(c) aim at maintaining the secure and dignified environment that

LegCo needs to carry out its functions.

43. This main purpose of the LC(PP)O is also illustrated by the

retention and continual application of the Standing Orders referred to at

[26] above at the time of the enactment and after 1997, their replication in

the RoP.19 (The observations on the effect of the Standing Orders at [26]

above are also true for the RoP.) They set a standard of orderly

behavior for both members and non-members that is congruent with

LegCo’s constitutional and social importance so that it may perform its

functions orderly and effectively without interference and disruptions.

44. This main purpose of the LC(PP)O must inform the

interpretation of sections 3 and 17(c).

19 Rule 36 replicating Standing Order 27; Rule 38, Standing Order 28; Rule 39, Standing Order 29, Rule 40, Standing Order 30; Rule 41, Standing Order 31; Rule 42, Standing Order 32.

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E6. General propositions relevant to interpretation

45. The following general propositions germane to the privileges

and immunities of LegCo also inform the interpretative exercise at hand.

46. First, the privileges and immunities are deeply rooted in the

doctrine of separation of powers to enable LegCo to function properly,

efficiently and without interference or disruptions. This is well borne

out in the judgment of the Court of Final Appeal in Leung Kwok Hung v

President of the Legislative Council (No 1), supra.

47. There, the main issue was having regard to the Basic Law

and the RoP, under what circumstances could a decision of the President

of LegCo made during the legislative process be judicially reviewed. The

Court of Final Appeal held that (1) article 73(1) of the Basic Law does

not confer on a LegCo member a constitutional right to participate in its

legislative process by speaking because the purpose of article 73 is to

confer the powers and functions on LegCo as a law-making body but not

on its individual members; and (2) the President of LegCo had power to

set limits to and terminate a debate, which power was inherent in or

incidental to his power under article 72(1) of the Basic Law to preside

over meetings, quite apart from rule 92 of the RoP, so that it was not for

the court to consider whether or not the power was properly exercised nor

whether the impugned decision constituted an unauthorized making of a

rule or procedure.

48. Relevantly for present purpose, the Court of Final Appeal at

[26] – [43] expounded the general principles governing the independence

and autonomy of LegCo and its relationship with the courts:

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(1) While the relevant common law principles have their origin

in the power, privileges and characteristics of the Parliament,

in particular the House of Commons in the UK, and in the

recognition by the courts of the exclusive authority of the

Parliament to determine its own internal procedures, the

preferable view is to regard the relationship between a

legislature and the courts as an outcome of the application of

the doctrine of separation of powers. This common law

doctrine is constitutionally enshrined in the Basic Law.20

(2) The established relationship between the legislature and the

courts includes the principles that the courts will recognize

the exclusive authority of the legislature in managing its own

internal processes in the conduct of its business, in particular

its legislative processes. The corollary is the proposition

that the courts will not intervene to rule on the regularity or

irregularity of the internal processes of the legislature but

will leave it to determine exclusively for itself matters of this

kind. This is referred to as the non-intervention principle.21

The non-intervention principle is subject to constitutional

requirements.22

(3) The important responsibilities of LegCo, notably its law-

making function, require that it should be left to manage and

resolve its own internal affairs, free from intervention by the

courts and from the possible disruption, delays and 20 At [27].

21 At [28].

22 At [32].

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uncertainties which could result from such intervention.

Freedom from these problems is both desirable and

necessary in the interests of orderly, efficient and fair

disposition of LegCo’s business.23

49. Second, the non-intervention principle identified by the

Court of Final Appeal is necessarily subject to constitutional

requirements: Leung Kwok Hung v President of the Legislative Council

(No 1), supra, at [32]. See also Chief Executive of the HKSAR v

President of the Legislative Council [2017] 1 HKLRD 460 (CA), at [22]-

[25], [71] and [86]-[87]; Yau Wai Ching v Chief Executive of the HKSAR

(2017) 20 HKCFAR 390, at [17]-[24].

50. Third, the purpose of conferring the privileges and

immunities on LegCo members is not to put them above the law. They

just ensure that LegCo members can carry out their role and perform their

functions as legislators without fear of any outside interference such as

executive action or proceedings in the courts. See Lord Browne-

Wilkinson’s speech in Pepper v Hart [1993] AC 593, at p.638D-F; and

Prebble v Television New Zealand Ltd [1995] 1 AC 321, at p.334A-C.

LegCo members need such protections to enable them to engage in robust

debates on the policy addresses of the Chief Executive or the work or

policy of the Government, to critically examine the budgets introduced by

the Government or public expenditure, to canvass issues of public

interests, to freely raise or even pursue points that may be unpalatable to

the Government without fear of reprisal by means of legal proceedings.

23 At [30].

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51. Fourth, following on from the third proposition, since the

whole purpose of conferring the privileges and immunities is to enable

LegCo members to perform their functions as legislators without fear or

interference, they are not immune from civil or criminal proceedings

merely by reason of their status. Thus they would enjoy no immunity if

charged with ordinary criminal offences which are not connected with

their legislative functions. See Bradlaugh v Gossett (1884) 12 QBD 271,

per Stephen J at p.283. This covers such criminal offences as an assault

in the corridors of the legislature, theft of another member’s money, or a

sexual offence, none of which related to legislative activity or

proceedings in the legislature. See Chaytor, supra, the first instance

judge’s observations referred to by Lord Phillips at [18] and [25].

52. In Chaytor, the issue was whether matters concerning claims

by some members of the UK Parliament for parliamentary expenses could

form the subject of criminal prosecutions. Lord Phillips explained at [48]

that the issue rested on whether scrutinizing the expenses in criminal

proceedings would have an adverse impact on the core or essential

business of Parliament and whether it would inhibit debate or freedom of

speech. He concluded that such scrutiny would not inhibit any of the

varied activities in which Members of Parliament indulge that bear in one

way or another on their parliamentary duties. The only thing that it

would inhibit would be the making of dishonest claims.

53. Fifth, the courts will determine whether the legislature has a

particular power, privilege or immunity by the test of necessity, that is,

whether it is necessary to the legislature’s capacity to function as a

legislative body: New Brunswick Broadcasting Co v Nova Scotia

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(Speaker of the House of Assembly), supra, McLachlin J at p.383d-f;

Leung Kwok Hung v President of the Legislative Council (No 1), supra, at

[39]-[43]. This tallies with the same view arrived at as a matter of

interpretation at [34] above. The test of necessity can also be

formulated thus: does the claimed privilege or immunity go to the “core

or essential business” of the legislature: see Chaytor, per Lord Phillips at

[47].

54. In drawing the contour of the privilege and immunity, the

courts must firmly bear in mind the doctrine of separation of powers, the

underlying rationale why privilege and immunity are conferred and the

test of necessity. The boundary the courts draw should not be too

narrow, lest it would unduly restrict legislators in performing their

functions by placing them at the mercy of legal proceedings by others

including the executive. Nor should it be too wide either, lest it would

easily allow legislators’ wrongful or even criminal conduct to go

unchecked and undeterred.

E7. Defining the boundary of section 3

55. As said, section 3 of the LC(PP)O is modelled on article 9 of

the English Bill of Rights (1689). The freedom of speech denotes the

freedom that LegCo members have to discuss what they will; the freedom

of speech concerns their freedom to say what they will: Pepper v Hart,

supra, per Lord Browne-Wilkinson at p.638D-E. In Chaytor, Lord

Philips at [61] emphasized that the protection of article 9 is absolute and

cannot be waived. The same must be true for the privilege of section 3.

However, it still remains for the court to determine whether the disorderly

conduct of a LegCo member if caught by section 17(c) falls within the

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privilege as a matter of statutory interpretation by reference to the main

purpose of the LC(PP)O and the propositions above. So interpreted, it is

clear from the reasons given below that the privilege of section 3 does not

extend to the disorderly conduct of a LegCo member if caught by section

17(c), as contended by Ms Ng.

56. It is well established that the freedom of expression, part and

parcel of the freedom of speech, embraces as one of its dimensions the

manner in which the individual concerned wishes to express his views:

HKSAR v Fong Kwok Shan Christine, supra, per Ribeiro PJ at [42].

This is a point taken by Ms Ng and not disputed by Mr David Leung SC,

DPP, appearing for the Secretary for Justice.24 However, it does not

follow that there is no restriction whatsoever on the manner in which one

wishes to express his views.

57. On a general level, in HKSAR v Chow Nok Hang (2013) 16

HKCFAR 837, at [38]-[43], Ribeiro PJ in dealing with article 17 of the

Hong Kong Bill of Rights, which concerns peaceful demonstration where

full rein is given to freedom of expression, emphasized that conduct

which disrupts or threatens to disrupt public order, as well as conduct

which infringes the rights and freedoms of others, are not permissible.

58. Fong Kwok Shan Christine, supra, concerned a more

relevant scenario. It involved the disorderly conduct of a member of the

public in the public gallery above a conference room where a

24 Leading Mr Anthony Leung SPP. Written submissions for the Secretary for Justice were prepared by Ms Vinci Lam, DDPP, who also appeared at the hearing on 1 August 2019.

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subcommittee of LegCo held meetings. The defendant was convicted of

an offence of contravening an administration instruction of LegCo,

contrary to section 20(b) of the LC(PP)O regulating the admittance of the

public in LegCo which required persons admitted to behave in an orderly

manner (AI s.12). One of the issues was whether AI s.12 was

unconstitutional in that it created an unlawful restriction on the right to

freedom of expression guaranteed under article 16 of the Hong Kong Bill

of Rights. The Court of Final Appeal held that the restriction satisfied

the proportionality analysis: per Ribeiro PJ at [111]-[117]. Ribeiro PJ

emphasised that the freedom of expression must not be exercised in a way

which interferes with LegCo proceedings or infringes others’ rights.

The restriction of AI s.12 targets intrusive behaviour to protect the good

order during a LegCo meeting. It is reasonable and proportionate.

59. Turning to the manner in which a LegCo member purports to

exercise the freedom of speech and debate under section 3, it is axiomatic

to ask why the absolute privilege is conferred in the first place within the

statutory framework of the LC(PP)O. Plainly, it enables LegCo

members to perform their functions as legislators without external

interference or fear of reprisal by legal proceedings for the purpose of

furthering the constitutional objects and functions of LegCo within the

statutory framework of the LC(PP)O. The privilege must not be

exercised in a way which is contrary to or inconsistent with or even

defeats the main purpose of LC(PP)O in creating and maintaining a

secure and dignified environment that LegCo needs to conduct its

business orderly and effectively. Equally important, the privilege must

not be exercised in a way which infringes the same privilege other LegCo

members need in order to perform their functions as legislators. It

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follows that the privilege must not be exercised in a so disruptive manner

that it is caught by the impugned conduct of section 17(c). For it cannot

possibly be the legislative intent to confer the privilege of section 3 to

allow a LegCo member to cause or join a disturbance which interrupts or

is likely to interrupt the proceedings of the Council or a committee,

thereby disrupting the business of the Council or the committee and

infringing the freedom of speech and debate of other LegCo members.

60. Approaching it by reference to the doctrine of necessity, one

asks: is it inherently necessary for the proper functions of LegCo to give

its member, as part of the privilege of section 3, the freedom to disorderly

conduct themselves within the meaning of section 17(c), thereby

disrupting LegCo’s business or infringing other members’ freedom of

speech and debate? The answer must be a resounding “No”. Or does

the protection for such disorderly conduct go to the core or essential

business of LegCo? Again, the answer must be a definite “No”.

61. Ms Ng submitted that once the manner of speech is covered

by the freedom of speech, then a LegCo member can exercise that

freedom in whatever manner he wishes. She even went so far as

submitting that it covers the impugned conduct caught by section 17(c).

With respect, Ms Ng’s submissions turn the privilege of section 3 and its

application in the statutory framework of the LC(PP)O on its own head.

For reasons stated above, they must be firmly rejected.

62. Ms Ng next submitted that if a member’s manner of speech

is not covered by the privilege of section 3, it will instill a chilling effect.

In the case where a member’s disorderly conduct is caught by section

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17(c), Ms Ng’s submission is premised on the assumption that unless he

is entitled to so conduct himself, he cannot meaningfully exercise his

freedom of speech and debate. This assumption is wholly unmeritorious

and must be rejected. The boundary of the privilege of section 3 drawn

above only aims at prohibiting a member from frustrating the very

purpose of the privilege being granted for the furtherance of the functions

of LegCo and from infringing other members’ same privilege, and no

more. It does not inhibit any member from exercising their freedom of

speech and debate in any manner other than that caught by section 17(c).

Subject to constitutional requirements, he is still entitled to exercise his

freedom of speech and debate within the boundary of the absolute

privilege freely in the proceedings of the Council or a committee.

63. Ms Ng also prayed in aid the non-intervention principle.

She argued that how to deal with a member’s disorderly conduct falls

within the internal affairs of LegCo. And LegCo has sufficient

disciplinary powers to deal with him, including those set out in the RoP

and in extreme case, to disqualify him for the office under article 79(7) of

the Basic Law. Further, section 17(c) is not an ordinary criminal

offence. In the circumstances, the courts should leave it to the exclusive

jurisdiction of LegCo to deal with member whose conduct is caught by

section 17(c) and should not interfere. With respect, Ms Ng’s reliance

on the non-intervention principle is misplaced.

64. Ms Ng relied on the very often quoted dicta of Lord

Coleridge CJ in Bradlaugh v Gossett, supra, at p.275: “What is said or

done within the walls of Parliament cannot be inquired into in a court of

law … the jurisdiction of the Houses over their own members, their right

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to impose discipline within their walls is absolute and exclusive.”

However, in Chaytor, supra, Lord Phillips at [30] pointed out that this

statement of non-intervention did not distinguish the narrow privilege

under article 9 (which is absolute and cannot be waived) and the broader

exclusive cognisance of Parliament (which is capable of waiver by

Parliament). (He then went to point out parliamentary privilege, even

that conferred by article 9, did not preclude a criminal prosecution in

respect of a conduct of a member merely because it had taken place

within the House of Commons.) Likewise, Ms Ng also did not draw a

distinction between the absolute privilege under section 3 and matters

falling within the exclusive cognisance of LegCo. The former is

absolute and not open to be questioned in the court. However,

depending on the circumstances, the situation regarding matters falling

within the exclusive cognisance of LegCo may be different.

65. Section 17(c) is derived from the English law on

parliamentary privilege concerning contempt of Parliament. The

English experience shows that Parliament, if so decided, could relinquish

the penal jurisdiction to the courts without offending the non-intervention

principle.

66. As already noted, the Parliament’s right to regulate its own

affairs includes the power to discipline its own members for misconduct

and, further, power to punish anyone, whether a member or not, for

behavior interfering substantially with the proper conduct of

parliamentary business. The disciplinary power to deal with contempt

of Parliament falls within the penal jurisdiction exercised by each House

to ensure that it can carry out its constitutional functions properly and that

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its members are not obstructed or impeded. To date, the English

Parliament still retains its penal jurisdiction: Erskine May, at §11.19.

67. Matters falling within its exclusive cognisance can be

waived or relinquished by Parliament by, say, primary legislation:

Chaytor, per Lord Philips at [63]-[68]. In 1999, the Joint Committee on

Parliamentary Privilege recommended that “for practical reasons

punishment of non-members for contempt of Parliament should, in

general, now be transferred to the courts”, although each House’s residual

jurisdiction should remain. This recommendation was not implemented.

In 2013, the recommendation was rejected by a subsequent Joint

Committee on Parliamentary Privilege, which considered that

criminalizing specific contempts “would entail a radical shift of power

between Parliament and the courts”, as well as introducing delay and

uncertainty, and removing flexibility. Instead, the 2013 Joint

Committee recommended that the two Houses should assert their

continuing penal powers, and clarify the procedures they would use if

called upon to exercise them to ensure fairness. See Erskine May, at

§11.22. Although the recommendation only concerned the penal

jurisdiction in respect of non-members, the same must be true for that

over members.

68. This episode demonstrates beyond doubt that the English

Parliament’s penal jurisdiction to punish for contempt falls within its

exclusive cognisance and is capable of being relinquished to the courts.

Indeed, the 2013 Joint Committee in its Report at [64] noted:

“As the Green Paper suggests, there are several possible approaches to legislation to ensure that contempts could be

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punished. … These approaches would transfer jurisdiction to the courts. As Lord Justice Beatson noted, Parliament would in effect give up some of its privileges: ‘You either give up a little bit of your exclusive cognisance and you get enforcement, or you stay pure and are faced with the difficulty that you so vividly put about how on earth you are going to enforce it’”. (Emphasis supplied)

69. Further, it would appear that the 2013 Joint Committee’s

recommendation to implement procedural rules to ensure fairness should

Parliament exercise its penal jurisdiction sought to alleviate the doubt if

Parliament is in a position to satisfy all the requirements of fairness in

criminal proceedings under article 6 of the European Convention on

Human Rights: see Chaytor, per Lord Phillips at [61], referring to

Demicoli v Malta (1991) 14 HER 47.

70. So even in England, the non-intervention principle does not

prevent Parliament, if it so decided, to relinquish its exclusive penal

jurisdiction by way of primary legislation to the courts for disorderly

conduct committed by members or non-members.

71. Coming back to Hong Kong, as noted, before 1997, LegCo

did not have penal jurisdiction to deal with contempt of legislature

generally, whether committed by members or not. It is clear from the

legislative process of the LC(PP)O that it was considered necessary to

give LegCo additional safeguards to maintain its order and discipline.

The protective disciplinary powers to deal with contempt of legislature

were not sufficient. New criminal sanctions in Part IV to punish for

contempt of legislature were created. Had LegCo so decided, it might

have been open to LegCo to confer the penal jurisdiction on itself, just

like the case of section 4(1) of the ODO. However, for reasons

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articulated in the legislative deliberations, LegCo decided to vest the

penal jurisdiction with the courts. LegCo had thereby made a deliberate

and informed decision to relax the non-intervention principle by

relinquishing to the courts the penal jurisdiction it could have claimed

over matters concerning contempt of legislature which falls within the

rubric of its exclusive cognisance. Insofar far as it concerns a member

whose conduct is caught by section 17(c), LegCo retains its full exclusive

jurisdiction to discipline him. As an additional safeguard to maintain its

order and discipline, LegCo gives the courts the criminal jurisdiction to

penalize him should a prosecution be brought under section 17(c).

72. By virtue of the criminal offences in Part IV, both LegCo

and the courts have different, overlapping, jurisdiction over contempt of

legislature. LegCo can take disciplinary proceedings against the person

guilty of such contempt; the courts can try him for the crime. That

being the case, careful consideration must be given to if see a prosecution

is warranted for a particular case. For example, if LegCo has already

commenced disciplinary proceedings against an offending member,

careful consideration should be given to as to whether a prosecution is in

the public interest. Accordingly, section 26 of the LC(PP)O provides

that no prosecution for an offence under the Ordinance shall be instituted

except with the consent of the Secretary for Justice. The Secretary must

consider if it is in the public interest to bring the prosecution: see Chaytor,

per Lord Phillips at [81].

73. Thus analysed, contrary to Ms Ng’s submission, the non-

intervention principle does not prevent LegCo from conferring the

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criminal jurisdiction to the courts over a member whose conduct is caught

by section 17(c).

E8. Interpreting section 17(c)

74. Having drawn the proper boundary of the privilege of

section 3, the interpretation of section 17(c) can be shortly disposed of.

75. Read in the context of the LC(PP)O as a statutory framework

to provide a secure and dignified environment for LegCo to perform its

functions and conduct its business orderly and effectively, section 17(c)

clearly aims at protecting the order and discipline of all the proceedings

in the Council or a committee from any person whose conduct is caught

by the provision, whether he is a member or not.

76. Harking back to her contention that the LC(PP)O is a

codifying statue, Ms Ng submitted that it could not have created any new

offence against a LegCo member under section 17(c) when LegCo did

not previously have such penal jurisdiction. For reasons set out above,

insofar as criminal offences are concerned, the LC(PP)O is not a

codifying statute. The new criminal offences, including section 17(c),

were created to give LegCo further safeguards to maintain its order and

discipline.

77. The wording used in section 17(c) is “any person”.

Contrary to Ms Ng’s submission, it must mean anyone including a LegCo

member. It is the natural and ordinary meaning of the wording used.

If the legislative intent were to exclude a member, it would have used the

same formula in section 20: “any person, other than a member … of the

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Council”.25 Most importantly, for reasons set out above, the legislative

intent is clearly to include a member. Excluding a member from its

application would have the consequences of defeating the main purpose

of the LC(PP)O and infringing other members’ exercise of their

privileges and immunities in performance of their functions.

78. Ms Ng referred to the wording used in section 4(1) of the

ODO and argued that the ambit for punishment of contempt was limited

to proceedings of taking evidence. Since section 17(c) seeks to

incorporate section 4 of ODO, it is also limited to proceedings of taking

evidence only. Her submission is again based on the untenable

contention that section 17(c) is a codifying or consolidating provision.

More importantly, section 17(c) must cover all proceedings in order to

achieve the aim of the statutory framework of the LC(PP)O by protecting

the order and discipline of the proceedings of the Council and its

committee. It cannot be limited to proceedings for taking evidence

under oath or indeed any type of proceedings.

79. On a proper interpretation, section 17(c) applies to a LegCo

member.

25 Section 20 reads: “Any person, other than a member or officer of the Council, who—

(a) enters or attempts to enter the Chamber or the precincts of the Chamber in contravention of any of the Rules of Procedure or any resolution under section 8(2); or

(b) contravenes any administrative instructions issued under section 8(3), or any direction given thereunder, regulating the admittance of persons to or the conduct of persons within the Chamber or the precincts of the Chamber,

commits an offence and is liable to a fine of $2,000 and to imprisonment for 3 months.”

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E9. Constitutionality of section 17(c)

80. The remaining question is whether section 17(c) is

unconstitutional. The only argument advanced by Ms Ng in this regard

is that if it applies to a LegCo member, section 17(c) allows the court to

interfere with the internal affairs of LegCo, thereby infringing the

constitutional doctrine of separation of powers.

81. Ms Ng’s argument is in substance the same as her

submission on the non-intervention principle, which has already been

rejected. More fundamentally, under the constitutional framework of

the Basic Law, only the courts have judicial powers. LegCo is never

vested with any judicial power. Since penal jurisdiction is judicial, it

always belongs to the courts exclusively. It is exactly because of the

doctrine of separation of powers that section 17(c) must vest the penal

jurisdiction with the courts and not anybody else, including LegCo.

LegCo’s decision to relax the non-intervention principle as explained

above conforms entirely with that doctrine.

82. Section 17(c) does not offend the doctrine of separation of

powers. It is constitutional.

F. Answering the questions of law

83. In consequence, the answers to the questions of law are:

(1) Question 1: the Magistrate erred in finding that the privilege

of section 3 covers the disorderly conduct of a LegCo

member if caught by section 17(c);

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(2) Question 2(a): No;

(3) Question 2(b): Yes; and

(4) Question 3: No.

84. The case is remitted to the Magistrate and she is directed to

restore the proceedings and proceed with the remainder of the trial until

conclusion in accordance with the judgment of the court.

Lam VP:

85. I respectfully agree with the judgment of the Chief Judge

and have nothing to add.

Pang JA:

86. I respectfully agree with the judgment of the Chief Judge.

(Jeremy Poon) (Johnson Lam) (Derek Pang) Chief Judge of Vice President Justice of Appeal the High Court

Ms Vinci Lam, DDPP, leading Mr Anthony Leung, SPP, of the

Department of Justice for the Appellant for the hearing on 1 August 2019

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Mr David Leung SC, DPP, of the Department of Justice, for the Appellant for the hearing on 12 May 2020

Ms Margaret Ng leading Mr Carter Chim and Mr Jason Lee instructed by

Ho Tse Wai & Partners, assigned by the Director of Legal Aid, for the Respondent